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You don't see so many jungle gyms in playgrounds these days. Or
old-fashioned seesaws. Or bare earth beneath them: One federal safety
handbook advises, "Earth surface such as soils and hard-packed dirt are
not recommended because they have poor shock-absorbing properties."
We must eliminate risk, prevent all possibility of injury or pain.

Philip Howard,
New York lawyer
and author of the
2002 book The
Collapse of the
Common Good,
cites playground
equipment as one
example of "the
triumph of
individual rights
over authority."
And he is setting
out to do
something about
that. He plans
next month to
announce the formation of
an organization called Common Good to reverse that trend and not let a
single individual bringing a lawsuit determine the rules that bind the rest
of us.

These individual rights are not those protected by the Bill of Rights, like
freedom of political expression (that is the target of the campaign
finance "reformers"), but the right to be compensated for any injury or
pain and to be protected from all risk or danger. Such rights were not
generally recognized as recently as the early 1960s, when courts,
operating under traditional common law, typically set standards of
reasonable care and did not automatically send cases to juries.

Today, when anything can go to a jury, we respond with bureaucratic
rules that hamper the exercise of authority. Teachers cannot discipline
disruptive pupils; their parents might sue. Doctors and nurses cannot
provide optimum medical care, lest they be second-guessed by a jury.
Government employees cannot use common sense to solve problems,
lest they violate bureaucratic regulations or union rules.

Loss of interconnectedness. All this is a legacy of the 1960s. The civil
rights movement got Americans into the habit of regarding anyone with a
complaint as a righteous victim. The failure of the government to win the
Vietnam and antipoverty wars got Americans into the habit of distrusting
all institutions and authority. But now, Howard argues, the rules and
decisions spawned by these habits of mind have created a tyranny over
everyday life and the decline in "social capital"-our interconnectedness
with other citizens-documented by Robert Putnam in Bowling Alone.

Can anything be done? Howard is assembling a diverse group of
endorsers for Common Good, from George McGovern to Alan Simpson,
and is commissioning polls on public attitudes. He has put forward
proposals to free teachers to exercise authority and to try medical
malpractice cases in special medical courts. But such changes cannot
be imposed by a single federal law. Change must come also in state
legislatures and state courts, in which trial lawyers have great influence.
Business interests and healthcare providers have been frustrated in
seeking change, and there is no institutional support for changes in
schools or on playgrounds.

Even more important, the habits of mind Howard is challenging have
become deeply rooted. Americans have come to think they have a right
to sue someone when anything bad happens: The classic case is the
woman who successfully sued McDonald's after being badly burned by
coffee she said was excessively hot. But there may be a countervailing
tide of opinion as well, a tide that has become stronger since September
11. For September 11 showed Americans that our differences are less
important than what we have in common. Bureaucratic rules and
procedures did not prevent the planes from crashing into the World
Trade Center and the Pentagon. But the spontaneous actions of our
fellow citizens-the heroes of United Flight 93-did prevent one plane from
hitting a possible target in Washington.

In the middle third of the 20th century, Americans experiencing the
traumas of depression and war set up rules to protect themselves from
all risk. But now we know that rigid institutions and rules cannot do that
and can stifle the creativity and initiative that can make society better.
We need, Howard argues, to give people in authority more leeway to use
their judgment and to let citizens act together on their own initiative. As
he has done: It was Howard who in September sent Mayor Rudolph
Giuliani two artists' proposals to shine two shafts of light up from the
World Trade Center site. The lights went on March 11. Now he's trying
to change the nation's mind. Maybe in time we'll see jungle gyms and
seesaws on playgrounds
again.